Holder Assures Judge of Administration's Respect

WASHINGTON — In a letter written at the request of a federal appellate judge, Attorney General Eric Holder on Thursday offered assurances that the Obama administration respects the decisions that courts make.

The attorney general wrote the letter after appeals court judge Jerry Smith in Texas asked for reassurances that the Justice Department recognizes judicial authority. Smith made the request after President Barack Obama said this week that it would be "unprecedented" for the Supreme Court to overturn a major law passed by Congress like the healthcare overhaul whose constitutionality it is now considering.

On Tuesday, the judge had said he wanted a letter of at least three pages that makes specific references to the president's statements.

"The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed," Holder wrote.

"The department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other court to reconsider or limit long-established precedent concerning judicial review," Holder added. He said "the president's remarks were fully consistent with the principles" the attorney general outlined in the letter.

“At no point has the government suggested that the court would lack authority to review plaintiffs’ constitutional claims if the court were to conclude that jurisdiction exists,” Holder said in the letter drafted to Smith’s specifications. “While duly recognizing the court’s authority to engage in judicial review, the executive branch has often urged courts to respect the legislative judgments of Congress.”

Smith raised the issue of Obama's remarks during oral arguments over a provision in the new healthcare law that restricts physician-owned hospitals from expanding or building new facilities, in ways that don’t apply to other hospitals. The physicians group U.S. Secretary of Health and Human Services Kathleen Sebelius last year.

“I’m referring to statements by the president in the past few days to the effect, I’m sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected’ judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress,’’ Smith said during April 4 arguments at a Houston session of the Fifth Circuit.

Holder wrote that where someone bringing a case invokes the jurisdiction of the court and has a valid challenge, "there is no dispute that courts properly review the constitutionality of acts of Congress."